United States v. Araguz-Briones

United States Court of Appeals Fifth Circuit F I L E D In the July 23, 2007 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _______________ m 06-40937 _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS FRANCISCO JAVIER ARAGUZ-BRIONES, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Southern District of Texas m 1:04-CR-201-ALL ______________________________ Before SMITH, BENAVIDES, and DENNIS, Francisco Araguz-Briones appeals his sen- Circuit Judges. tence, claiming that the government failed to perform its contractual obligation to move for JERRY E. SMITH, Circuit Judge:* a one-level downward departure. We vacate and remand. I. * Araguz-Briones pleaded guilty, pursuant to Pursuant to 5TH CIR. R. 47.5, the court has de- a plea agreement, of being an alien found un- termined that this opinion should not be published and is not precedent except under the limited lawfully in the United States following depor- circumstances set forth in 5TH CIR. R. 47.5.4. tation and after having been convicted of an aggravated felony in violation of 8 U.S.C. § 1326(a) and (b). The plea agreement con- to ninety months’ incarceration. tained an appeal waiver provision in which Araguz-Briones waived the right to challenge II. his sentence on appeal or in a post-conviction Araguz-Briones claims the government proceeding but reserved the right to appeal the breached the plea agreement by not moving for sentence if it exceeded the statutory maximum a one-level downward departure at resentenc- or was an upward departure from the sentenc- ing. The government counters that it was ing guidelines. The agreement obligated the released from its obligation when the first pan- government “to recommend . . . [a] one-level el of this court found that the appeal waiver departure under 5K3.1 for early disposition provision was not knowing and voluntary, plea at arraignment.” When discussing the ap- because that provision cannot be severed from peal waiver at rearraignment, the magistrate the rest of agreement. We thus face the ques- judge advised Araguz-Briones that he “could tion whether a court should hold the govern- still appeal from an illegal sentence.” He was ment to its obligations under a plea agreement sentenced to seventy-five months’ incarcera- after the court invalidates a defendant’s obli- tion. gation not to appeal his sentence. In other words, can a defendant keep the benefit of his Araguz-Briones appealed, arguing that he plea agreement after being relieved of his bur- had been sentenced under the mandatory den? This is a question of first impression in guidelines scheme found unconstitutional in this court, and Araguz-Briones faces a steep United States v. Booker, 543 U.S. 220 (2005). hurdle on appeal. The government claimed that the appeal waiv- er provision of the plea agreement barred the A. appeal. This court disagreed, holding that, be- Araguz-Briones concedes that he did not cause the court had advised Araguz-Briones object to the government’s refusal to move for that he could appeal an illegal sentence, the ap- a downward departure, and thus we review peal waiver was not knowing and voluntary, only for plain error. United States v. Branam, so the sentence could be appealed. The court 231 F.3d 931, 933 (5th Cir. 2000). Under the vacated the sentence and remanded for resen- plain error standard, we may correct the sen- tencing. tence only if there is: “(1) error; (2) that is plain; (3) that affects substantial rights; and (4) At resentencing, the government argued the error seriously affects the fairness, integ- that by appealing, Araguz-Briones had rity, or public reputation of judicial proceed- breached his plea agreement and deprived the ings.” United States v. Lewis, 412 F.3d 614, government of the benefit of its bargain, so the 616 (5th Cir. 2005) (citing United States v. government had decided not to move for the Cotton, 535 U.S. 625, 631 (2002)). Further, § 5K3.1 one-level downward departure. Ara- an error is plain only if it is clear under current guz-Briones did not object, and the downward law. United States v. Salinas, 480 F.3d 750, departure was not given.1 He was sentenced 756 (5th Cir. 2007) (citing United States v. 1 1 Without the one-level departure, Araguz- (...continued) Briones’s advisory guidelines range was 77-96 months; if the departure had been given, the range (continued...) would have been 70-87 months. 2 Olano, 507 U.S. 725, 734 (1993)). The importance placed by the government on appeal waivers is demonstrated by the At- B. torney General’s guidelines for fast-track pro- We begin by examining the effect of this grams.2 All defendants who, like Araguz-Bri- court’s finding, in the first appeal, that the ap- ones, agree to a plea bargain under a fast-track peal waiver provision was not knowing and voluntary. Araguz-Briones argues that even 2 under the plain error standard this holding had In United States v. Perez-Pena, 453 F.3d 236, the effect of severing the appeal waiver provi- 238 (4th Cir.), cert. denied,127 S. Ct. 542 (2006), sion and left the remainder of the agreement the court provided a comprehensive description of intact. this process: Plea bargains are interpreted in accordance “Fast-tracking” refers to a procedure that originated in states along the United States- with general contract principles. United States Mexico border, where district courts experi- v. Story, 439 F.3d 226, 231 (5th Cir. 2006). enced high caseloads as a result of immigration Whether a contract “is entire or severable violations. To preserve resources and increase turns on the parties’ intent at the time the prosecutions, prosecutors sought to obtain agreement was executed, as determined from pre-indictment pleas by offering defendants the language of the contract and the surround- lower sentences through charge-bargaining or ing circumstances.” Nat’l Iranian Oil Co. v. through motions for downward departure. Ashland Oil, Inc., 817 F.2d 326, 333-34 (5th Cir. 1987). The government argues that, un- Congress officially sanctioned the use of de- der general contract principles, the appeal parture fast-track programs in 2003, with its waiver provision cannot be severed from the enactment of the Prosecutorial Remedies and agreement, and thus the waiver’s invalidation Other Tools to end the Exploitation of Children by the first panel nullified the plea agreement Today Act of 2003 (“PROTECT Act”), Pub. and released the government from its obliga- L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). In conjunction with authorizing the tions. Attorney General to create and implement such programs, Congress directed the Sentencing Whether the appeal waiver provision is sev- Commission to promulgate “a policy statement erable turns on whether it is an “essential authorizing a downward departure of not more term” of the bargain. Id. The government than 4 levels if the Government files a motion urges that the waiver is an essential term be- for such departure pursuant to an early disposi- cause the goal of a plea agreement is to offer tion program authorized by the Attorney Gen- a defendant a lower sentence than he may re- eral and the United States Attorney.” Id. ceive at trial in exchange for saving the gov- Pursuant to this directive, the Commission ernment the effort that would be expended if adopted § 5K3.1 of the sentencing guidelines, the case were tried and appealed. An agree- providing that “[u]pon motion of the Govern- ment that waives most appellate rights saves ment, the court may depart downward not more the government more effort than does an than 4 levels pursuant to an early disposition program authorized by the Attorney General of agreement that does not waive those rights, the United States and the United States Attor- and thus the inclusion of an appeal waiver ney for the district in which the court resides.” should result in a better bargain for the defen- United States Sentencing Guidelines Manual dant. § 5K3.1, p.s. (2004). 3 program are required, pursuant to a memoran- and voluntary; that is a question of first im- dum from the Attorney General to all U.S. pression in this circuit. Attorneys, to waive their right “to appeal, and to challenge the resulting conviction under [28 We typically do not extend precedent when U.S.C. § 2255], except on the ground of inef- deciding such questions under plain error. fective assistance of counsel.” Perez-Pena, See, e.g., United States v. Hull, 160 F.3d 265, 453 F.3d at 239. This requirement indicates 272 (5th Cir. 1998). In this particular case we that the waiver is essential to the bargain. choose to follow United States v. Stevens, 66 F.3d 431, 437 (2d Cir. 1995), and vacate the C. sentence and remand. At the government’s The government claims the plea agreement option, the district court shall either (1) resen- contains an anti-severability clause evincing tence Araguz-Briones, with the government’s the parties’ intent that the agreement must moving for the one-level § 5K3.1 reduction as stand or fall as a whole. The pertinent section called for in the plea agreement, or (2) vacate of that clause reads, “If the defendant should the plea agreement in its entirety and allow the fail in any way to fulfill completely all of the parties either to reach a new agreement or to obligations under this plea agreement . . . the go to trial.3 Araguz-Briones “may not, how- United States will be released from its obliga- ever (unless the government consents), retain tions under the plea agreement.” the benefits of the sentencing agreement while being relieved of its burdens.” Stevens, 66 This clause supports the government’s posi- F.3d at 437. Because these are unique facts tion but is not determinative. It is not an anti- and we are reviewing for plain error, we limit severability clause; it requires Araguz-Briones our holding to the facts and arguments pre- to fulfill his contractual “obligations,” not to sented in this case. adhere to all the terms of the contract. Be- cause the first panel ruled that the appeal III. waiver was not enforceable, Araguz-Briones To preserve the issue for further review, was arguably no longer obligated, under the Araguz-Briones challenges the constitutional- agreement, to refrain from appealing. We ity of 8 U.S.C. § 1326(b). He made the same need not decide whether the clause, standing argument in his first appeal, and we reject his alone, is effective as an anti-severabilityclause. claim now for the same reasons as before. See It lends at least some support to the govern- United States v. Araguz-Briones, 170 Fed. ment’s contention that the parties did not Appx. 332 (5th Cir.), cert. denied 126 S. Ct. intend for the contract to be severable. Based 2341 (2006). on the guidelines for the fast-track program and the language of the plea agreement, The sentence is VACATED, and the case is Araguz-Briones has not shown, under the plain error standard, that the appeal waiver provi- 3 sion is severable. See also United States v. Bushert, 997 F.2d 1343, 1354 n.23 (11th Cir. 1993). The Bushert court noted that if the government had asked the D. court to allow the defendant to replead “to protect We turn to the question of the proper rem- its bargaining position more fully,” the court would edy when a non-severable provision of a plea have entertained the request. Id. Here the govern- agreement is found to have been not knowing ment has made such a request. 4 REMANDED for resentencing consistent with this opinion. 5